Not So Broke After All

If Texas lawmakers and budgeteers make the right dance steps in the next few weeks, they'll have $800 million available to add to next year's spending — without a tax or fee increase.

A couple of legislative fixes now, while the full Legislature is in town, combined with some budget shuffling that can be done by the Legislative Budget Board after the full Legislature leaves town, could free hundreds of millions of dollars that didn't appear to be available just last month.

It sounds like a Monty Python bit. A month ago, Comptroller Carole Keeton Strayhorn was staring down Gov. Rick Perry and legislative leaders over a budget she said would not balance. That bit of brinksmanship ended with the governor making some surgical spending cuts and Strayhorn signing off on the final budget. When that saga was over, Gov. Perry finished off his bill signings and vetoes, including several line-item budget strikes that freed about $70 million. Strayhorn said a few days later that the budget balanced and that, when all of those things were taken into account, lawmakers had left $98.6 million unspent, a relatively small margin in a $117.4 billion budget.

Now that they've had time to consider all of their actions and options, budget writers in and around the Capitol have found they left lots of available money unspent.

One big problem had to do with the effective date of a fund transfer in a transportation bill. It wasn't in the right budget year, and had the effect of making the state's 2004-2005 budget come up a couple hundred million dollars short. They found the money elsewhere to make the budget balance, but lawmakers are in Austin now and if they want to, can fix that date. It would add $231.7 million to the amount available for spending during the two-year budget cycle that begins September 1.

Another patch, if they can figure out a legal way to apply it, would free $98.8 million for general spending. The money is raised from court costs, and because of the way the law is written, it can't be used for the general state budget. If the Legislature will approve it, the budgeteers say they've got a way to tap into that particular pot of money. Those two actions, if taken by the Legislature while it's here for special session, would add to what's already left in the till, for a total of $429.1 million.

The rest would be up to the LBB, a committee chaired by Lt. Gov. David Dewhurst that includes House Speaker Tom Craddick as vice chair, and four members each from the Senate and the House. That panel can only act when the full Legislature is not in session, but they have the power to move money around in the state budget.

While Strayhorn was saying last month that the budget didn't balance, she also said it would have been even further in the red if the federal government hadn't pulled a late hat trick, sending the state over $1.1 billion in Federal Matching Assistance Program (or FMAP, for geeks) money.

Without getting too far into that jungle, suffice to say that the FMAP money is supposed to go to certain programs, but the state is allowed to reduce the use of its own money for those programs by the same amounts. The FMAP money supplants state money, which can then be used for other stuff. Lawmakers didn't fully replace the FMAP money in the state budget, and if they have the intestinal fortitude to pull that money out of Medicaid budgets and the like, they can free up $372.3 million for general state spending. That could be done by the full Legislature, but on a political level, it's easier to ask the LBB to move that money than to ask 181 senators and representatives to vote to pull money out of health and human services programs. Total all three actions, and the budgeteers will have $801.4 million available to spend, should they decide to spend it.

Spend? Save?

The Legislature already voted to spend newly found money, adding a list of contingency provisions to the budget that set out priorities for some new spending. The priorities are in those Article 9 riders that have caused so much consternation over the last month.

The FMAP money from the federal government frees up similar amounts of state money. Lawmakers made a list of beneficiaries for those dollars. Reimbursement rates for nursing homes and other medical providers top that catalog, followed by community care programs at the Department of Human Services; HIV and Sexually Transmitted Disease, and community health programs at the Department of Health; services for pregnant women, medically needy children, graduate medical education, mental retardation community services, and at-risk prevention services. The "Texas B-On-Time" loan program would be funded after that.

The governor and the LBB don't appear to be bound to that spending. The provision does require Perry and the LBB to come up with a plan outlining how the money will be spent. It lists the items above as priorities of the Legislature, but leaves some wiggle room.

The Comptroller vs. The Powers That Be

There's another simmering disagreement between the state's tax collector and the people who spend the money, and it's about when money is available to lawmakers and when it's out of their reach. And it's part of the same set of "riders" in the appropriations bill that caused the earlier flare-up that nearly sent the state's top Republicans to the Texas Supreme Court to settle a fight over money.

The Legislative Budget Board can move money around within the budget without asking for approval from the full Legislature. That's called budget execution, and it's a well-worn, well-established trail. Now there's a new wrinkle, and it concerns money that's in the state's bank accounts but not included in a particular agency's spending blueprint. Unappropriated money in the state treasury has been off-limits in the past. This year, however, budgeteers included a provision in the budget — with the comptroller's staff helping them craft it — that appears to open the door to LBB spending of non-appropriated money. For instance, the money freed up by Gov. Rick Perry's last-day vetoes of bills would normally go back into the treasury, waiting and collecting interest until the next Legislature came back and appropriated it. Not everyone reads the new provision that way, or thinks it is constitutional. Stop us if that has a vaguely familiar ring to it.

The Fight That Wasn't

It's similar to the arguments made last month, when Strayhorn said the budget was out of balance and that an anti-bounce provision included in the package was unconstitutional. Gov. Perry, along with Lt. Gov. David Dewhurst and House Speaker Tom Craddick, were ready to go to the Texas Supreme Court to make her balance the budget. Attorney General Greg Abbott had the lawsuit drawn up and had his aides alert reporters to stand by at the court clerk's office to watch.

The suit never got filed. Perry made some budget cuts to satisfy Strayhorn, who certified it, and that was that. Abbott, who contends the un-filed suit is not a public record, gave us a copy anyhow. In it, he argued that the state constitution requires the comptroller to certify the budget if that budget includes a provision that lowers spending to fit the comptroller's estimate of state income.

Abbott contended that decisions about spending policy belong solely to the Legislature, and said the Legislature left the comptroller with a purely "ministerial" role. The language was direct: "... it is she, by refusing to comply with the terms of the budget bill passed by the Legislature, who has attempted to usurp the policymaking role assigned to the Legislature and, ultimately, the veto authority assigned to the governor," he wrote. He asked the court — or was ready to — to order her to certify the budget so that the governor could get busy with his line-item vetoes. Strayhorn hadn't seen the suit when we called, but hasn't backed off: She thinks the anti-bounce provision is illegal.

Maps Out the Wazoo

You know the story about the U.S. House being the hot cup of tea and the Senate playing the role of the saucer used to cool it? Mr. Washington might as well have been telling Mr. Jefferson about the Texas Legislature in 2003.

The House passed a brand new redistricting bill on Monday — eight days into the special session — that nobody had seen 72 hours earlier. It went to the Senate. Senators from both parties took a look, scorned it, began drawing maps of their own, and then decided not to even consider a map in committee until next Tuesday — eight days after the House had zipped its bill through. It'll be Thursday at best before the thing goes to the full Senate. And since that won't be the bill approved this week by the House, it'll have to go back to the lower chamber, which can either bless it or send it off to a conference committee for negotiations.

By drawing a map that's unacceptable to several Republican senators, the House guaranteed itself a shot at a conference committee to iron out Senate-House differences. And by doing that, they assured themselves an opportunity to draw a map that needs only 16 votes in the 31-member Senate instead of one that has to win approval from 21 of the senators. But the Senate — where bipartisan coalitions still rule — isn't acting like it feels the pressure. And the way things are lining up, the Senate might be able to draw a "take it or leave it" map and send it back to the House late next week.

Lt. Gov. David Dewhurst started the week saying he wants a map that has a comfortable majority in the Senate. He didn't let reporters pin him down on just what that meant. But he left the impression that he and the senators don't like the idea of getting 21 votes to bring up a plan and then following up with a plan that can barely carry a simple majority. Sen. Bill Ratliff, R-Mount Pleasant, is one of the votes the GOP will need to bring the redistricting plan up for consideration. He told reporters he will want solid assurances that a conference committee won't come back with something unpalatable. And Sen. Chris Harris, R-Arlington, was saying by the end of the week that he won't stand for much change out of the conference committee. He's the Senate sponsor of the bill, and a hard-ass negotiator of some renown in the Pink Building.

Vacation Contingency Planning

Just say, for the sake of argument, that the Legislature is not finished with its work by the end of next week, Friday, July 18. It's well known that hordes of lawmakers, including Speaker Tom Craddick, have their eyes set on the National Conference of State Legislatures confab in San Francisco, starting on Monday, July 21. That convention ends on Friday the 25th. A governor can call as many special sessions as he or she wants, but they last a maximum of 30 days.

The options, if your summer holiday planning is dependent on the vagaries of Texas legislative politics, go like so: 1) Lawmakers can finish next week. 2) Lawmakers can take a one-week breather in California before coming back to finish their business on redistricting and other bills. 3) Give up on San Francisco and remain in Austin to finish up.

The odds, about a third of the way into the session, go this way. It's possible to finish redistricting in a week, but not if there's going to be a lot of House-Senate negotiation after the Senate passes a bill (if the Senate passes a bill). Going to San Francisco in the middle of the session would be relaxing to everyone but voters, political consultants, taxpayers and those who thought Ardmore looked like a work stoppage. Staying in Austin and working while the San Francisco junket is going on will make legislators even surlier than they are now.

Finally, the reason for this little exercise: To show one of the pressure points in the redistricting machine. The House is ready to wrap up. The Senate is moving slowly. And the levers belong to those who aren't in a hurry to be someplace else.

The Dead Thing in the Middle of the Road

It would have been hard to draw a map that does a better job of taking care of national Republican concerns while making it so hard to win support in a Texas Senate with a GOP majority. The House didn't take care of Republican senators' concerns, much less draw a plan that would appeal to the two or three Democrats needed to get the thing to the Senate floor in the first place. How do they hate the House map? Some of the specific complaints:

• Waco and its elected officials don't like splitting their county, which now has a U.S. Rep. and might not have one under the House plan. One of the new districts would be dominated by Bell County (which is currently in the same district with all of McLennan County).

The other district that includes part of Waco would be dominated by Williamson County. That second district would be shared — until the next election — by Waco Democrat Chet Edwards and Georgetown Republican John Carter. The numbers in that election would favor Carter by both partisan and geographic measures. Waco's brass, including a fair number of Republicans, hope the Senate will rework it. If it won't, Senate Republicans could lose the support of Sen. Kip Averitt, R-Waco.

• Waco's not the only place wondering what the GOP is trying to do. Taylor County, where Abilene is the biggest burg, is the largest of 36 counties in U.S. Rep. Charlie Stenholm's district. The Stamford Democrat would be paired in the House map with U.S. Rep. Randy Neugebauer, a Lubbock Republican elected in a special election this year.

Lubbock would dominate the new district. Some Republicans we've talked to think Stenholm could win in the new district. He's the ranking Democrat on the House's agriculture committee, and ag dominates the economy in that region. Lubbock doesn't want to lose "its" seat in Congress. Others look at the numbers and say Lubbock's numerical strength, the strong GOP tilt to the proposed district, and the fact that George W. Bush will be on the ballot next year all point to a win for a Lubbock Republican. The folks in Abilene don't like that. The first argument is hard on Lubbock Sen. Robert Duncan, a Republican (and would be a tough vote for Lubbockians in the House, who voted for it the first time just to move the bill along). The second one makes the House map odoriferous to Sen. Troy Fraser, R-Horseshoe Bay, whose district includes Abilene.

• East Texans, even the Republicans, don't like it. The scowls on the faces of people like Bill Ratliff of Mount Pleasant and Todd Staples of Palestine come from the map's tendency to give suburban voters control over districts with huge rural areas. To some extent, that's the nature of the game: Each district has to have 651,619 people in it, and they mostly don't live in rural areas. But Ratliff and Sen. Ken Armbrister, D-Victoria, both took a look and said they'd rather try drawing their own maps instead. If those two aren't on board, it would be very difficult to get the needed 21 Senate votes to begin consideration of congressional redistricting.

Crossing t's, Dotting i's

That's not a complete list, but you get the idea. That's why the Senate slowed down and started drawing maps from scratch, and why the schedulers don't expect to see a map until Tuesday. They want to walk it through the lawyers — legal challenges are certain — and work in secret to make sure they have wide support before they start the public fight. For the record, the House map would create 20 solidly Republican districts — all but one dominated by Anglos — and 12 Democratic districts, all but one of them dominated by Black and Hispanic voters. Only one Anglo Democrat— Lloyd Doggett of Austin — would not be paired with another incumbent.

Everybody's antsy about public input. After redistricting opponents attacked the House for its public hearings, both the House and the Senate walked on eggshells. The Senate's Jurisprudence Committee put transcripts of its hearings on the Internet as soon as they had them, and was trying to get all of those up before the full Senate took up the redistricting bill. Both the House and the Senate posted audio files of hearings on their Internet sites.

One for the Cats, One for the Mice

State police can't be used to round up legislators who don't show up for work. State District Judge Charles Campbell, after hearing a lawsuit by Rep. Lon Burnam, D-Fort Worth, ruled that the House rule used to bring the Texas Department of Public Safety into the Ardmore incident is outside of the police agency's scope of authority. DPS is only allowed to enforce laws "protecting the public safety and provide for the detection and prevention of crime." None of that came into play when House Democrats migrated to Oklahoma to deny a quorum for a redistricting vote. Burnam won that one, but lost on every other point. Burnam was prompted to sue, in part, when DPS officials ordered agency staff to destroy documents and other evidence of the agency's investigation of the missing Democrats. The court dismissed those claims. A statement from the attorney general's office said the state might appeal the ruling on using police to chase down missing politicians. It wasn't argued or briefed in court, the statement said, and might be worth another shot.

Lawyer-Bashing

The House didn't adopt a couple of amendments that would have hobbled attorney Andy Taylor. Taylor was top assistant to former Attorney General (and now U.S. Senator) John Cornyn and was AG Greg Abbott's choice to lead the transition team when Abbott took over. Taylor handled redistricting, among other things, while on Cornyn's staff and kept the state account when he left to return to private lawyering. Texas taxpayers paid Taylor's law firm more than $800,000 for the work. Abbott has retained him to do the same for this administration, signing Taylor to a $400-an-hour deal. Democrat Jim Dunnam of Waco offered up an amendment to the redistricting bill that would have capped pay for any outside redistricting counselors — Taylor included — at the average of the top ten salaries of state employees in the AG's office. The House turned it down, along with another amendment that would have barred lawyers who — like Taylor — have challenged the legality of a state law in the last 12 months.

Flotsam & Jetsam

Sen. Eddie Lucio, D-Brownsville, will be back in action in time for votes on redistricting and on asbestos legislation. Neither bill has a safe majority in the Senate, and Lucio — who is recovering from a heart attack — has said he'll vote against the asbestos bill. He also said he's against the redistricting bill, but left a little room to join the majority if he likes the bill the Senate puts together over the weekend. With all of the senators in the room, you need 21 votes to bring a bill up for consideration. With one missing, you only need 20 votes. Lucio aides say he'll be around when both issues come up.

• You don't usually see political flyers in the Legislature's inter-office mail: Some Texas Republicans are trying to get Dianne Thompson elected president of the National Federation of Republican Women, and they sent their fundraising pitch through the House's distribution system to GOP members. The signers include Sen. Florence Shapiro, R-Plano, Reps. Peggy Hamric, R-Houston, and Mary Denny, R-Aubrey, and Teresa Spears, who's also listed as the person to send checks to. They asked for contributions of $500 for Top Guns, $250 for Big Plays, and lesser amounts from Loyal Supporters. Thompson's a former head of the Texas Federation of Republican Women.

• The redistricting map from Rep. Senfronia Thompson, D-Houston, didn't get a hearing. But she said it would expand the number of minority districts to 13, create seven seats with no incumbents, and pair a number of incumbents. But unlike the maps floated and passed by House Republicans, all but one of her pairings stuck a Republican with a Democrat in a minority district. The exception paired two Dallas Republicans in one district.

• Gov. Rick Perry added an item to the call of the special session, but only after it was challenged on the floor of the House. It would let the comptroller borrow money for short-term notes, patching over a last-minute budget-saving deal from the regular session. That might later be amended to fix a cash-flow problem for schools: Lawmakers put a state funding payment to public schools in the wrong fiscal year and need to repair the damage.

Political People and Their Moves

What everybody has known or suspected for a year is now official: Rep. Sylvester Turner, D-Houston, is running for mayor of Houston. That's his second run, and the election — in November — falls well before the filing deadline for a House reelection bid. If Turner's mayoral hopes don't pan out, he could run for a ninth term in the Legislature... Katharine Armstrong is resigning as chairwoman of the Texas Parks & Wildlife Commission, opening a spot on that board at a time when Gov. Rick Perry has asked legislators to reconstitute it. If the Legislature does what Perry wants, all members of that board would be out, and the governor could name a new set of commissioners. Armstrong didn't announce what she'll do next, saying she was leaving so she'll have more time to spend with her children. She was appointed to the board in 1999 by then-Gov. George W. Bush, and named chairwoman by Perry a couple of years later... Separately, that agency is promoting Michael Berger to director of its wildlife division. He's the chief of TPW's private lands and habitat branch right now... The head of the institutional division in the Texas prison system, Janie Cockrell, announced her retirement, saying she'll leave the agency in August and spend her time ranching. She started as a correctional officer 27 years ago and is one of the highest ranking women in that industry in the country... Press corps moves: The irrepressible and irreproachable Michele Kay, after stints as political reporter, government reporter, business reporter, political flak, editor, and probably a half-dozen other things, is retiring from the Austin American-Statesman. She'll take off for a couple of weeks in England, and then return to Austin to work on a graduate degree in liberal arts at St. Edward's University... A couple of weeks after emptying some of the boxes on her agency's organization chart, Comptroller Carole Keeton Strayhorn promoted several employees. To wit: Jesse Ancira is now her executive assistant as well as general counsel. Chief revenue estimator James LeBas adds "special assistant to the comptroller" to his title. Strayhorn named Eddie Solis special assistant for legislative and border affairs. Ruthie Ford is special assistant for strategic policy initiatives, and Alfredo Cardenas is manager of local government assistance. Those aren't direct title transfers: chief of staff Tracy Wurzel and communications director Bill Kenyon parted ways with Strayhorn last month... Deaths: Former legislator Joe Wells Sr., who served in the Texas House during FDR's first term as president and went on to become a state employee, a banker, an advisor to Gov. Allan Shivers, and PR man for a funeral home in Austin. He was 93.

Quotes of the Week

David Lippe of San Angelo, telling the Abilene Reporter-News that legislators ought to draw a new map: "Just because you didn’t do it right two years ago is a lousy excuse not to do it this time."

Sen. Bill Ratliff, R-Mount Pleasant, in the Longview News-Journal: "I will not support any plan that could result in someone from the Dallas-Fort Worth area representing Northeast Texas."

Sen. Frank Madla, D-San Antonio, quoted in the San Antonio Express-News on how he'll vote on a new map: "One day I'm for it, and then one day I'm against it. One day I visit with some people who just convince me that I need to be a 'No,' and the next day I visit with people who convince me that I really seriously have to consider being a 'Yes.' And I'm really having a tough time."

Sen. Ken Armbrister, D-Victoria, on why he's drawing his own redistricting plan: "If I was the governor, no, I wouldn't have called a special session. But the governor did call it, so I'm here and I'm going to try to do the best I can. What I am trying to do is at least have a starting point."

Rep. Robby Cook, D-Eagle Lake, on his state senator: "Sen. Armbrister? I have more respect for him than I do for some of my family members."

U.S. Rep. Jeb Hensarling, R-Dallas, dissing the Texas House's congressional plan in the Athens Daily Review: "They're radical changes, and, frankly, I'm very, very disappointed in the map. I know the state Legislature has a very tough job. But personally, I'm very dismayed at the lines they drew."

Rep. Garnet Coleman, D-Houston, on the eve of the full House vote on congressional redistricting: "This isn't the last map. You heard that before and guess what? It wasn't. This isn't the last map."

Texas Weekly: Volume 20, Issue 5, 14 July 2003. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2003 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.